Appeal
from an order of the County Court of Broome County (Pelella,
J.), entered January 13, 2017, which granted defendant's
motion to suppress evidence.

At
roughly 2:40 a.m. on February 26, 2015, Kevin Mauser, a
sergeant in the Broome County Sheriff's Office, received
a radio dispatch informing him that the victim of an alleged
robbery had reportedly found his stolen vehicle. Roughly 15
minutes later, Mauser arrived in the general area in which
the vehicle had been reported as found and, before confirming
its location, began "looking for anybody" within a
one-block radius of the vehicle. As he was driving, Mauser
spotted an individual, whom he could not initially identify
as a man or woman, "walking pretty fast" and
"with a purpose" in the opposite direction of the
vehicle.

Mauser
circled the block and approached the individual - later
identified as defendant - from behind in his marked police
vehicle, activated the vehicle's overhead lights, opened
his door and directed defendant to stop. According to Mauser,
defendant looked over his shoulder and immediately fled.
Mauser then pursued defendant in his vehicle and, as
defendant was attempting to jump a short fence, exited his
vehicle and, with his taser drawn, ordered defendant to stop.
Defendant complied, and Mauser grabbed defendant's arm
and pulled him down from the fence. Defendant was
subsequently searched, arrested and, following a search of
his home pursuant to a search warrant, charged with two
counts of robbery in the second degree, unauthorized use of a
motor vehicle in the first degree, grand larceny in the third
degree and criminal possession of stolen property in the
third degree. After a suppression hearing, County Court
granted defendant's motion to suppress the physical
evidence found on his person and in his home, as well as any
statements he made to the police, prompting this appeal by
the People.

In
People v De Bour (40 N.Y.2d 210');">40 N.Y.2d 210 [1976]), the Court
of Appeals "set forth a graduated four-level test for
evaluating street encounters initiated by the police: level
one permits a police officer to request information from an
individual and merely requires that the request be supported
by an objective, credible reason, not necessarily indicative
of criminality; level two, the common-law right of inquiry,
permits a somewhat greater intrusion and requires a founded
suspicion that criminal activity is afoot; level three
authorizes an officer to forcibly stop and detain an
individual, and requires a reasonable suspicion that the
particular individual was involved in a felony or
misdemeanor; level four, arrest, requires probable cause to
believe that the person to be arrested has committed a
crime" (People v Moore, 6 N.Y.3d 496, 498-499
[2006]; see People v Hollman, 79 N.Y.2d 181, 184-185
[1992]; People v De Bour, 40 N.Y.2d at 223). Here,
as County Court properly held, the information possessed by
Mauser at the time that he observed defendant walking
justified no more than a level one stop to request
information (see People v Holmes, 81 N.Y.2d 1056,
1058 [1993]; People v Burnett, 126 A.D.3d 1491, 1492
[2015]; People v Savage, 59 A.D.3d 817, 819 [2009],
lv denied12 N.Y.3d 920');">12 N.Y.3d 920 [2009]; People v
Locano, 209 A.D.2d 278, 279 [1994]). However, the manner
in which Mauser approached defendant - that is, by activating
the overhead lights on his marked police vehicle and
directing defendant to stop - elevated the encounter to a
level two common-law inquiry (see generally People v
Hollman, 79 N.Y.2d at 191-192; People v Faines,
297 A.D.2d 590, 593 [2002], lv denied99 N.Y.2d 558');">99 N.Y.2d 558
[2002]; compare People v Morris, 105 A.D.3d 1075,
1077 [2013], lv denied22 N.Y.3d 1042');">22 N.Y.3d 1042 [2013];
People v Savage, 59 A.D.3d at 819; People v
Locano, 209 A.D.2d at 279), requiring a founded
suspicion that criminality was afoot (see People v
Hollman, 79 N.Y.2d at 185). At the time of Mauser's
initial encounter with defendant, he lacked such a founded
suspicion.

In
arguing that Mauser had, at least, a founded suspicion of
criminality, the People rely heavily on defendant's
geographic proximity to the stolen vehicle. However, time and
again, courts have held that geographic location, without
more, is insufficient to sustain a suspicion of criminality
(see e.g. People v Barksdale, 26 N.Y.3d 139, 144 n 3
[2015]; People v McIntosh, 96 N.Y.2d 521, 526-527
[2001]; People v McCullough, 31 A.D.3d 812, 813
[2006], lv denied7 N.Y.3d 850');">7 N.Y.3d 850 [2006]; People v
Boulware, 130 A.D.2d 370, 373 [1987], appeal
dismissed70 N.Y.2d 994');">70 N.Y.2d 994 [1988]). Although Mauser
testified that he arrived in the area 13 to 14 minutes after
receiving the dispatch, the record is devoid of any
indication that Mauser possessed information - such as the
precise time that the vehicle was reported as found or how
long it had been there prior to the report - that could lead
to the reasonable inference that the person or persons
involved in the theft of the vehicle might still be in the
area. Nor does the record establish that Mauser was acting on
reliable information identifying or describing the person
suspected to have stolen the vehicle (compare People v
Robinson, 101 A.D.3d 1245, 1245-1246 [2012], lv
denied20 N.Y.3d 1103');">20 N.Y.3d 1103 [2013]; People v Hall, 41
A.D.3d 880, 882 [2007], lv denied9 N.Y.3d 876');">9 N.Y.3d 876
[2007]; People v Ward, 201 A.D.2d 292, 292-293
[1994], lv denied84 N.Y.2d 834');">84 N.Y.2d 834 [1994]). Rather,
Mauser solely relied on defendant's location in relation
to the area in which the vehicle was reportedly found and the
fact that he was walking at a brisk pace at 2:53 a.m. on a
cold winter day. Together, these facts were insufficient to
form a founded suspicion of criminality, so as to justify the
common-law right to inquire (see People v
McCullough, 31 A.D.3d at 813; cf. People v
Ferry, 152 A.D.2d 952, 952-953 [1989]).

In any
event, even if Mauser's initial encounter with defendant
was considered to be a level one stop or if Mauser were found
to have possessed a founded suspicion that criminality was
afoot to justify a level two stop, defendant had the
constitutional right to be let alone and, by disregarding
Mauser's directive to stop, defendant did not elevate the
level of suspicion to a reasonable suspicion that a crime had
been, was being or was about to be committed (see People
v Moore, 6 N.Y.3d at 500; People v May, 81
N.Y.2d 725, 727-728 [1992]; People v Howard, 50
N.Y.2d 583, 586, 591-592 [1980]). While "[f]light,
combined with other specific circumstances indicating that
the suspect may be engaged in criminal activity, could
provide the predicate necessary to justify pursuit"
(People v Holmes, 81 N.Y.2d at 1058; see People
v Martinez, 80 N.Y.2d 444, 448 [1992]; People v
Howard, 50 N.Y.2d at 592), the requisite additional
facts supporting criminality were lacking here (see
People v Holmes, 81 N.Y.2d at 1058; People v
McCullough, 31 A.D.3d at 813; compare People v
Ward, 201 A.D.2d at 292-293). Accordingly, Mauser's
pursuit and forcible stop and detention of defendant were
improper, and County Court properly suppressed the physical
evidence found on defendant's person and in his home, as
well as any statements he made to police (see People v
Howard, 50 N.Y.2d at 592).

To the
extent that we have not addressed any of the People's
arguments, they have been reviewed and found to be without
merit.

Peters, P.J., Garry, Devine and ...

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